HKSAR v. SIU KAM YUNG

CACC512/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 512 OF 2006

(ON APPEAL FROM DCCC 688 OF 2006)

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1. The 65-year old applicant was, on 24 October 2006, convicted on her own plea in the District Court by Deputy Judge Casewell of a single offence of conspiracy to steal (Charge 1) and seven theft offences (Charges 3–6, 13–15).

2. She was sentenced to 10 months’ imprisonment in respect of each of the 1^st charged offence of conspiracy and the 3^rd charged offence of theft, and to 6 months’ imprisonment for each of the remaining theft offences contained in Charges 4–6 and 13–15.

3. The judge ordered that the sentences be served partly concurrently so as to arrive at a total sentence of 32 months’ imprisonment.

4. The offences all related to the applicant’s shoplifting activities.  So far as the offence the subject of Charge 1 is concerned, the applicant was seen on 14 May 2006 by police on patrol in Kowloon acting suspiciously in the company of three co-accused (D2 to D4).

5. The police followed the four of them to the Sogo Department Store in Causeway Bay where they observed the applicant and D2 taking men’s suits off a display rack and, with the assistance of D3 and D4, placing them in the plastic bags the applicant and D2 had taken out from rucksacks they were carrying.  The plastic bags had the Sogo logo on them.

6. A store staff then approached the gang and all four then attempted to flee but were arrested by police.  A search of the applicant’s home was subsequently conducted and various items stolen by her on previous shoplifting excursions were found by police.  She admitted her theft of those items which were the subject matter of Charges 3–6 and 13–15.  

7. The applicant at the time of these offences had a bad criminal record comprising over forty previous convictions for shoplifting between 1971 and 2006, and indeed Ms Anita Ma who represented her before us makes no complaint against the individual sentences imposed by the judge, or their totality.  It is accepted the sentences were not excessive and that the judge made no error in principle in imposing them.  The applicant simply seeks to have her sentence reduced on a humanitarian basis.

8. The applicant had five children.  Her youngest daughter sadly died from a long-standing illness on 1 December 2006, some 39 days after the applicant commenced serving her present sentences.  She was 40 years old.  Immediately following the death of her daughter, the applicant, who had previously suffered from bouts of depression, experienced those symptoms again and was initially treated at the Tuen Mun Mental Health Centre on 2 December 2006 where she was diagnosed as suffering a moderate episode of Recurrent Depressive Disorder.  

9. That diagnosis was confirmed upon subsequent examinations of the applicant at Castle Peak Hospital, though the seriousness of this current episode of her illness was subsequently described as “mild to severe”.  The prognosis for the applicant’s illness was stated in a report of Dr Robyn Mei Yee Ho of Castle Peak Hospital dated 11 March 2007 as being “fair”.  The applicant requires continual psychiatric treatment at the present time. 

10. Whilst we have every sympathy for the applicant, we note that her daughter’s illness, Systemic Lupus Erythematosus, predated the present offence and she had in fact been receiving treatment for it since 1995.  Her condition had deteriorated by September 2002 to the extent that she was receiving intensive care at Queen Elizabeth Hospital.

11. The present offences were committed by the applicant between May 2003 and May 2006.  They were committed, it is fair to say, whilst the applicant was well aware of the state of her daughter’s illness.

12. We do not think in those circumstances the death of the applicant’s daughter amounts to such an exceptional humanitarian ground so as to warrant a reduction in the applicant’s sentence.  Nor do we think that the current episode of the applicant’s depressive disorder brought on by the death of her daughter amounts to such a ground.  That illness is currently being treated whilst the applicant is in custody and is apparently being managed with some success.  It has not been thought necessary to transfer her to Siu Lam Psychiatric Centre.

13. For the above reasons we are driven to the conclusion that the applications must be dismissed.